Ars Q&A: Silicon Valley Congresswoman talks the 2013 tech agenda

Zoe Lofgren looks for balance in copyright and a broader view on immigration.

Rep. Zoe Lofgren has been in Congress since 1995, representing San Jose and surrounding areas. Silicon Valley was already a hub for technology and innovation at that time, but the World Wide Web and widespread Internet use was in its infancy. Yahoo, eBay, Google, and other Web giants sprouted in and around Lofgren's district. They've changed our world dramatically since she's been in office, creating amazing new services, major policy challenges, and conflicts between industries. As a lawmaker who has been in office for almost as long as the Web has existed, Lofgren has been at the heart of those.

When we caught up with Lofgren two years ago, she was the member of an embattled, and tiny, minority of lawmakers who weren't going to sign on to a new, overreaching copyright law that threatened to mess with the Internet's basic architecture in the name of fighting piracy. Last year, we saw the anti-SOPA Internet uprising of 2012, an event that will probably change tech policy for years to come. For those who care about a free and open Internet, there is—hopefully—a new landscape on Capitol Hill.

We spoke to Lofgren last week at the CES convention in Las Vegas to get an idea of how that landscape looks to her.

Ars: Last time we talked to you, it was 2011, and the big tech controversy of the day was about a predecessor of SOPA called COICA.

Rep. Lofgren: Oh, yes. It sounds dirty doesn't it?

Ars: It certainly does. Back then, you said we might have a "vigorous debate... if the American people wake up to what this is." Looking back on the SOPA uprising, it looks like your prediction came true, in a big way. Can you describe what happened last January from your point of view?

Rep. Lofgren: I spent a lot of time and effort trying to get word out so the American people could wake up to what was going on. It's something I don't think has ever happened like that before, in the House. I knew the blackout was coming but most of my colleagues didn't. When the calls started coming in, it was stunning to people. It was not a pleasant experience for people who were on board with SOPA.

Between the morning and noon, the momentum was gone. It was dead. I mean, it took a while to officially declare it dead, but it was dead by lunchtime.

Ars: So the bill was killed within half a day?

Rep. Lofgren: Yeah. Sponsors were having their names taken off the bill—it was over. Since then, some of the Republican proponents of it are trying to say they killed it because they didn't bring it up [for a vote]. That's absurd. It was as dead as a doornail. It was toxic.

The American people were upset, and direct about what they didn't want to happen—which is, censorship and interference with the net. It went from inevitable to impossible in three hours.

Ars: What's different in the wake of that protest, if anything?

Rep. Lofgren: In the past, "big content," if I can quote my friend [Senator] Ron Wyden, really got their way on everything. There was a pattern they would pursue: they would get the chair and ranking members of the Judiciary Committee in the House and the Senate, and then they would get the Chamber of Commerce [on board], and then they would get the AFL-CIO—pretty soon, it's Mom and Apple Pie! Everybody is for this.

You can't be an expert on every subject, and copyright is not something every member deals with. There are people who specialize because of their committee assignments. I couldn't explain milk price supports to you.

So, they were for it because apparently it was the right thing to do and everyone was for it. All of a sudden, the roof fell in. People were angry that they had kind of been misled, that [SOPA] was a wonderful thing. And there's not a sentiment to walk a plank for something like that again.

Ars: Has it changed the impact of the so-called "Big Content" lobby?

Rep. Lofgren: Well, certainly, I'm not for infringement. But I do think that we need to revisit copyright law so it works in the Internet age, and I'm preparing some draft bills I hope will assist in that discussion.

Hoping to rein in massive damages, and Web seizures

Ars: So what is on deck for this Congress as far as copyright?

Rep. Lofgren: Until now, the driver of copyright legislation has always been Big Content, and there's never really been a driving force on the free speech side or the tech side. So that has yet to develop. And I don't know that is going to effectively develop this year, but I think its time to take a look at these issues.

For example, why is it that you can spend a billion dollars and develop a medication, and by the time you get it to market you've only got 15 years left on your patent term—but the ditty that advertises the medication is protected for 100 years. What is the rationale for that?

Ars: Well, what about shortening terms, or at least not lengthening them? Are we to a point where we can talk about that?

Rep. Lofgren: I think there's discussion in the public about it now and I think that's healthy. Honestly, when you've got a copyright term of a century, what's the point of extending it? When you think about the original term of 14 years, it's extraordinary. There needs to be a discussion about that.

We also need to revisit statutory damages. I've seen discussions of cases where if you add up all the statutory damages, it would be more than the gross domestic product of the planet. Is that rational?

Ars: Let me ask you about another issue that some people think is an example of copyright overreach, which is the recent Web seizures being done by ICE and other departments. Has there been any progress on that?

Rep. Lofgren: I've got a draft bill I'm working on there. I'm about to re-post it on reddit to get comments on the actual language. Some of the comments [from last time the bill was on reddit] were helpful. I don't know that we'll have success [in passing it], but we should. Assuming that the seizures are lawful at all—and I think there's doubt about that—to simply seize property without any due process is kind of an extraordinary proposition, especially when that prop almost always implicates free speech.

Ars: We're seeing other kinds of criminal enforcement of copyright law in the executive branch. The most prominent example last year was MegaUpload—any thoughts on that case?

Rep. Lofgren: I don't usually comment on ongoing cases, because there's no way to have all the facts. I will say one of the issues raised when I posted my concept [bill] about seizures on reddit was innocent third parties. If you've got all your baby pics stores in the cloud on MegaUpload, and the government takes it down, how do you get your stuff back?

Ars: Putting aside MegaUpload, there are actually a number of cases, and there has been a general increase in criminal copyright enforcement coming from the executive branch. The US is seeking extradition of one suspect from Great Britain, for example. Without getting into the details of specific cases, is that trend something you have thoughts on?

Rep. Lofgren: I do think we need to take a look at [protecting] private users, people who are not making commercial exploitation of copy protected material. We need to take a look at the whole statutory damages issue... what we're doing now is clearly not working. It brings law enforcement and the federal government into disregard, especially among young people.

I don't support infringement. Whether the laws should be changed or not, we should be law-abiding individuals. I'll give you an example. There was a movie recently I wanted to stream and watch, that my family had watched without me, in the theaters. So I'm trying to find it [online] and the only place I could find it was a free, infringing site. Well I didn't do that, because—I don't do that. But I was happy to pay for it, it turns out you just couldn't pay for it.

The outcome of the SOPA fight last year is the Big Content people realize the days of getting their way completely is kind of at an end. It doesn't mean they don't deserve consideration—they do. It's time to work with technology and instead of seeing it as a threat, seeing it as an opportunity to grow your market.

On patents, little hope for movement

Ars: Another big issue in the Valley has been patents. Do you think there's prospect for meaningful patent reform?

Rep. Lofgren: I honestly am skeptical that there is. I worked on the last patent reform bill from 1997 until last year, and what we ended up with was—almost nothing. In fact, I ended up not voting for it after all that time. I was on the floor and during the vote, I got a text message from the general counsel of a tech firm I know asking: "Is there anything in this bill a troll wouldn't love?" Well, no! There wasn't.

So, it's very difficult to change patent law. I'm not someone who says never, but I've been through the patent battles for over a decade. There are winners and losers, and the people who are winning under the current system are fiercely defensive about keeping it the way it is.

Ars: Who do you conceive those parties to be?

Rep. Lofgren: I don't want to get into that, but—the trolls have an interest, of course. And the pharmaceutical world had a different business model than the high-tech world, and that was a very intractable problem in terms of reform. Because of TRIPS [an international intellectual property treaty], you can't really make a distinction between different items that are being protected, so that continues to be a problem.

Ars: What about patent battles between competitor companies? That's something people are worried about being bad for consumers and a drag on innovation as well.

Rep. Lofgren: When there's a war, everybody has to divert money and attention to acquiring patents, both as a sword and as a shield. It diverts resources from innovation.

I know people are concerned about the software [patent] wars, and I think what is happening now is a drag on innovation. But I'm doubtful that the legislative process is likely to fix it.

One thing I'm interested in is the essential patents ruling that FTC made. Now, the ruling simply enforces what was required to begin with. But the fact that that ruling is out there as a marker may be important.

On immigration, tech needs to broaden its focus

Ars: Let's talk briefly about immigration, which is the issue you came out to CES 2013 to discuss. Is the issue for Silicon Valley the same one it has been for some time now? That is, that tech companies say they need more access to high-skill employees, the so-called STEM (Science, Technology, Engineering, and Math) graduates?

Rep. Lofgren: The companies often say that, and it is important. But, it's also families. They'll call in sometimes—an engineer, say, and his wife is in another country. [Because of visa issues] they're going to be separated for five to six years, and the engineer is saying—forget it, I'll go back to India!

So to think that it's just the guys with PhDs—it is them, but it's not just them. And it's not just tech, either. The agriculture industry is totally dependent on migrant farmworkers from other countries. Our economy needs immigrants. I think we have a window here, to proceed in an orderly fashion, to get the immigration laws reformed. I'm willing to do my part.

Ars:A change to immigration rules proposed by the Republican leadership in the House last month fell flat. Why do you think now is the time that a change to immigration?

Rep. Lofgren: That effort was never on the level, and people could see it wasn't. The chair of the committee put together a bill that he knew would not pass. People can argue about the lottery, but the need for diversity is something that is important to the country. [The bill would have granted more visas for STEM graduates while reducing the "diversity" visas that allow for immigration from underrepresented countries.]

Ars: Why do you think there's a window for serious immigration reform now?

Rep. Lofgren: The essential thing to keep in mind is, Mitt Romney lost the election. He got less than 30 percent among Asian and Latino voters. He got crushed in those demographics. A lot of people, including a lot of Republicans, believe that unless they can have a better relationship with those two demographic voting groups, they'll never have another Republican president. And I think that's probably true. They've maxed out what they can do with white voters.

So, immigration reform is part of that. The question is are Republicans ready now? We've been fighting them for a couple decades. Are they willing to do a reform effort? I think there's a substantial chance that they are. And the Democrats are too.

Ars: What needs to happen for that to come together?

Rep. Lofgren: I was on the phone yesterday with someone saying we should move an agricultural worker position ahead of everything, because farmers are plowing under their crops. But we have a window here where we can get the whole thing done.

People just see one part of it—and that's legitimate. I don't expect the CEO of a tech company to have the same passion for the tomato picker that he has for the engineer. But if we can't take the broader view, we will lose this opportunity. If we can't do the whole thing in the next year, we'll be back to each man for himself.

"This interview has been condensed and edited for clarity." - I don't think you've quite finished your editing? The two second to last questions don't state when the Rep is talking for example which is inconsistent with the other parts. Also there's a least one part where you haven't bolded the participants names but you did for the other ones.

She blames the Republicans for shit, but of the 3 major IP and Internet-related bills of the last few years, 2 (COICA and PIPA) were proposed by Democrats.

If she really wanted to do some good, she'd work towards fixing the political process first; term limits would be a decent start, as well as increased controls on what congresspeople do post-office. Increased power should decrease boundaries.

She blames the Republicans for shit, but of the 3 major IP and Internet-related bills of the last few years, 2 (COICA and PIPA) were proposed by Democrats.

If she really wanted to do some good, she'd work towards fixing the political process first; term limits would be a decent start, as well as increased controls on what congresspeople do post-office. Increased power should decrease boundaries.

Tech Democrats != Hollywood Democrats

That said, term limits are an awful idea - it takes the power away from the institutional representatives and puts that power in the hands of the lobbyists. My local and state governing groups have had this problem. Shortly after term limits kicked out a bunch of county councilmen, the advertising lobby asked for a bill to put billboards up along a newly developed highway. The councilmen didn't want it, but were under pressure by the lobbyists, so the came to a deal to limit the number of billboards to be installed. Well guess what? That limit was ruled to be unconstitutional by a court of law. So the limit part of the law was struck down and now billboards are everywhere. An experienced legislator may have known that would have happened and wouldn't have compromised, but these rookies didn't and the public was on the losing end in the form of endless visual pollution for nightclubs and personal injury attorneys. Same thing happens at the state level - the rookies get schooled not by the elder statesmen of the legislature, but by the various lobbying groups because no one up there has more than three years of experience (12 years * 6 months every 2 years = 3 years of actually being a legislator).

Quote:

A lot of people, including a lot of Republicans, believe that unless they can have a better relationship with those two demographic voting groups, they'll never have another Republican president.

And if it weren't for gerrymandering the everloving shit out of congressional districts, Republicans wouldn't even have a majority in the House! More votes were cast for Democrats than Republicans on a nationwide level, yet Republicans still have control. That seems like the opposite of a representative government.

Plus, she is from the generation that still remember south bay as a mainly agricultural. Heck, I am decades younger than her, but I remember McCarthy Ranch was actually a ranch, not the technology office park(Cisco, etc.) in Milpitas.

"I don't support infringement. Whether the laws should be changed or not, we should be law-abiding individuals. I'll give you an example. There was a movie recently I wanted to stream and watch, that my family had watched without me, in the theaters. So I'm trying to find it [online] and the only place I could find it was a free, infringing site. Well I didn't do that, because—I don't do that. But I was happy to pay for it, it turns out you just couldn't pay for it."

Well we got music to a nice point now... Books, movies and tv shows are next.

"Whether the laws should be changed or not, we should be law-abiding individuals."

Sounds like someone wanting to get godwin'ed.

Some one needs to show her how it is a citizens duty to replace the government if the government becomes against the people. Not to argue that we're near that point, but to argue the even the founding fathers knew laws are not meant to be followed all of the time.

When a large percentage of the population is exercising its natural rights, which is some how illegal, the government should be the one getting punished, not someone standing on their soap box talking scolding the citizens for not being good sheeple.

Bad laws happens, but they typically get fixed after a bit. current copyright is based almost entirely on government corruption and/or stupidity.

Plus, she is from the generation that still remember south bay as a mainly agricultural. Heck, I am decades younger than her, but I remember McCarthy Ranch was actually a ranch, not the technology office park(Cisco, etc.) in Milpitas.

lot of people, including a lot of Republicans, believe that unless they can have a better relationship with those two demographic voting groups, they'll never have another Republican president. And I think that's probably true. They've maxed out what they can do with white voters.

Imagine identical twin brothers in Milan about a century ago. They both decide to emigrate, but they get on different ships. Out past the Azores, both ships go more or less in parallel but then one hangs a left and the other a right. The one that goes right end up in New York, the other in Veracruz, Mexico.

Now, one brother is suddenly 'white' while the other is 'latino'. What I wonder is:

And if it weren't for gerrymandering the everloving shit out of congressional districts, Republicans wouldn't even have a majority in the House! More votes were cast for Democrats than Republicans on a nationwide level, yet Republicans still have control. That seems like the opposite of a representative government.

That just means that Democrats won by larger margins than Republicans this year, and with a sample size of one it's nothing but sour grapes to call anything gerrymandering. In Illinois, for instance, the state lost an electoral vote and lost a seat in the House due to the 2010 census. And the seat was a Republican-controlled seat.

I guess I don't know where that specific seat went and who won it. The states it COULD have gone to include:

ArizonaFloridaGeorgiaNevadaSouth CarolinaTexas UtahWashington

Most of those wound up being Romney states, but that's where the population is.

We can't have direct votes on everything. That's like the inmates running the insane asylum. My point is that it may not be perfect, but it's fairly close. The only alternative is to vote for a party instead of a candidate, and that freaks me out even more. Both parties have topics I agree/disagree with. I'd rather evaluate it on a case by case basis.

lot of people, including a lot of Republicans, believe that unless they can have a better relationship with those two demographic voting groups, they'll never have another Republican president. And I think that's probably true. They've maxed out what they can do with white voters.

Imagine identical twin brothers in Milan about a century ago. They both decide to emigrate, but they get on different ships. Out past the Azores, both ships go more or less in parallel but then one hangs a left and the other a right. The one that goes right end up in New York, the other in Veracruz, Mexico.

Now, one brother is suddenly 'white' while the other is 'latino'. What I wonder is:

Exactly at which point does this change happen?

Do any US citizens actually realize how supremely bizarre it is?

So, after that 100 years and many generations, the two now separated families would completely identify with one another? While the two bothers might have regularly enjoyed Risotto alla milanese in the past, one might think their two descendant families might enjoy NY style pizza and tacos respectively. I think that culturally the two families would be different, even if their skin is the same shade.

And if it weren't for gerrymandering the everloving shit out of congressional districts, Republicans wouldn't even have a majority in the House! More votes were cast for Democrats than Republicans on a nationwide level, yet Republicans still have control. That seems like the opposite of a representative government.

That just means that Democrats won by larger margins than Republicans this year, and with a sample size of one it's nothing but sour grapes to call anything gerrymandering. In Illinois, for instance, the state lost an electoral vote and lost a seat in the House due to the 2010 census. And the seat was a Republican-controlled seat.

I guess I don't know where that specific seat went and who won it. The states it COULD have gone to include:

ArizonaFloridaGeorgiaNevadaSouth CarolinaTexas UtahWashington

Most of those wound up being Romney states, but that's where the population is.

We can't have direct votes on everything. That's like the inmates running the insane asylum. My point is that it may not be perfect, but it's fairly close. The only alternative is to vote for a party instead of a candidate, and that freaks me out even more. Both parties have topics I agree/disagree with. I'd rather evaluate it on a case by case basis.

The problem is that a lot of those states are gerrymandered. That doesn't mean that they wouldn't still be the majority party, but would have one or two extra seats in the house minority party. I don't normally like linking to Mother Jones, but they have an excellent infographic that shows the problem.

Republicans have a worse recent track record but Democrats do it too, like in Maryland. This is one issue that should unite principled voters across the spectrum, because it is absolutely wrong, undemocratic, and downright corrupt. A conservative group/area in Maryland, a liberal group in North Carolina, and a liberal group in California should all have a proportional voice in congress.

Look up your state's voting districts and vote against any party that practices gerrymandering.

Notice that the liberal Triad (raleigh-durham) are split into multiple parts and then assigned huge rural areas to outweigh them, rather than voting as distinct geographic regions even though they are known as such, while liberal Charlotte and the Triangle (greensboro-high point) are pushed together to preserve rural seats.

Ars: We're seeing other kinds of criminal enforcement of copyright law in the executive branch. The most prominent example last year was MegaUpload—any thoughts on that case?

Rep. Lofgren: I don't usually comment on ongoing cases, because there's no way to have all the facts. I will say one of the issues raised when I posted my concept [bill] about seizures on reddit was innocent third parties. If you've got all your baby pics stores in the cloud on MegaUpload, and the government takes it down, how do you get your stuff back?

Sigh... This president could rape a goat on TV, and everyone would just change the subject.

The "war" in Afghanistan continues indefinitely, the Patriot Act gets resigned into law - again - by Obama, Aaron Swartz is dead after a Latina Obama-appointed prosecutor decided that he needed to be crucified for a victimless act, and when Obama's prosecutors take private property, we get a "I don't comment". I'm sure Zoe Loftgren would have "no comment" on a case like this if it was 2006.

I give up. He is untouchable.

Maybe this is all George Bush's fault. That moron is responsible for everything else... Maybe this is his fault too?

Plus, she is from the generation that still remember south bay as a mainly agricultural. Heck, I am decades younger than her, but I remember McCarthy Ranch was actually a ranch, not the technology office park(Cisco, etc.) in Milpitas.

Her district had changed a lot, so she had refocused. But I don't find it hard to believe that she still genuinely care about agricultural policy.

I agree. She also wants tech people to understand that in order to get what they want they'll have to appease non-tech constituencies.

Appease is a loaded word to use. Appease assumes that the other party's goals are illegitimate, when in effect they would be reaching a mutually beneficial deal with another self-interested party. Their goals are even the same, they both want more workers. They'll have to compromise with nativist opposition, and appease some members of congress who get inappropriate spending deals out of the process in exchange for votes.

Tech Immigration is just like any 'powerful lobby' regarding Congress. If the NRA wants even more guns and bullets -- it pays members of Congress and pays to defeat foes. If tech companies want more cheap, young tech workers -- they just pay members. Immigration shouldn't have quotas tied to degrees or professions.

I'd say the bigger issue is the one created by gerrymandering, where there are "safe" districts in which the representatives are virtually impossible to vote out.

As someone else mentioned, term limits would also increase the influence of lobbyists, so "solving" the current representation problem is obviously far more complicated than something that simple could fix. There's a lot of seemingly invisible problems that will need to be addressed as well.

Because of TRIPS [an international intellectual property treaty], you can't really make a distinction between different items that are being protected, so that continues to be a problem.

Why have I not heard about this in the greater context of the patent "debate"? The way she mentions it, it sounds like a huge obstacle that would prevent any sort of reform as applied to software patents.

It's time to work with technology and instead of seeing it as a threat, seeing it as an opportunity to grow your market.

It's nice to finally have a politician state the very fact that many of the tech enthusiasts have been claiming for years. But overall, her answers seemed too rote at times. She kept repeating phrases and some of her answers to the questions posed were not quite synched up. It was, to me, a typical politician's stance. She was underwhelming in her inspirations compared to the previous dialogues with Senator Wydown.

I don't doubt the sincerity of Lofgren's convictions toward helping bring balance, but it seems to me from her own wording that her methods are more tepid than would ever actually help the public. It seems like the best we could reasonably expect from many of her stated prior attempts (such as that patent bill she ultimately removed support from after helping draft) is that she could get lip service paid toward balanced copyright, but nothing that would have any practical teeth either in court or in corporate practice (such as penalizing companies that abuse DMCA take-down requests, a la Lionsgate).

Perhaps Wydown is exceptional in his more clear-cut stances and this is more typical of what we should expect as constituents and public at large. But I find the whole political speak rather disappointing.

She blames the Republicans for shit, but of the 3 major IP and Internet-related bills of the last few years, 2 (COICA and PIPA) were proposed by Democrats.

If she really wanted to do some good, she'd work towards fixing the political process first; term limits would be a decent start, as well as increased controls on what congresspeople do post-office. Increased power should decrease boundaries.

She blames the Republicans for shit, but of the 3 major IP and Internet-related bills of the last few years, 2 (COICA and PIPA) were proposed by Democrats.

If she really wanted to do some good, she'd work towards fixing the political process first; term limits would be a decent start, as well as increased controls on what congresspeople do post-office. Increased power should decrease boundaries.

Tech Democrats != Hollywood Democrats

Democrats are Democrats, same as Republicans are Republicans.

Democrats are People, Republicans are People, and no two people will ever agree on everything.

Comments like yours make me incredibly happy my country has more voting options than yours.

I'd say the bigger issue is the one created by gerrymandering, where there are "safe" districts in which the representatives are virtually impossible to vote out.

As someone else mentioned, term limits would also increase the influence of lobbyists, so "solving" the current representation problem is obviously far more complicated than something that simple could fix. There's a lot of seemingly invisible problems that will need to be addressed as well.

[Edited for clarity.]

You could solve gerrymandering by an amendment that eliminates districts and lets voters pick a certain number of candidates for each state, and then the winners are those with the most votes. Obviously that contains problems too. Or you could do an amendment that requires rough population and then geometric equivalency among districts and makes the supreme court the arbiter of such decisions ( a souped up version of what we have now), but that could continually create problems. I don't think gerrymandering will be solved without an amendment that reduces the right of state legislatures to create districts, but good luck getting the state legislatures to vote for it and effectively give up their power to rig elections.